Judge rips Fenty on Child and Family Services leadership

Mayor Adrian Fenty and his administration took quite a tongue-lashing Monday from U.S. District Judge Thomas F. Hogan in his long-awaited opinion on the District's effort to end the long-running class-action case against the city's child welfare agency.

Not only did Hogan reject the city's legal argument for ending the case, known as LaShawn v. Fenty, but he agreed with the plaintiffs in finding the mayor and his administration in contempt for, among other things, the way a new Child and Family Services director was chosen last year in the aftermath of the Banita Jacks case.

Instead of including the plaintiffs and the court-appointed monitor in the selection process, as it had agreed, the administration simply told the other parties that Roque Gerald, a veteran CFSA official who was serving as interim director, was Fenty's choice to the agency, which had been thrust into turmoil after Jacks's four children were found dead in January 2008 in the family's Southeast home.

The slight infuriated the plaintiffs -- and didn't exactly please the judge, who in his opinion on Monday included his memorable February 2009 exchange with Fenty's attorney general, Peter Nickles, regarding just what constitutes involvement in the process.

THE COURT: ... Am I to understand that ... [the plaintiffs] have not been included in the selection?

MR. NICKELS: They will be included and given notice before we make a selection and have an opportunity to talk to the individual. If it's Dr. Gerald they would have already met him and opposed him. They will know just as they knew last time they agreed and then rejected.

THE COURT: What [does] an acceptable permanent director mean to you?

MR. NICKELS: This means, to me, a candidate that's acceptable to the mayor. It's an executive function. The mayor was selected to run this agency. He has the right to name a director. Obviously, when he names a director he will receive advice from a lot of different people.

THE COURT: The court monitor and plaintiffs being included in the selection process means to you [that] after you select a person they're allowed to talk to them?

MR. NICKELS: What it means, Your Honor, is that the mayor will make a selection and hear the comments of [the plaintiffs' counsel] and the court monitor. We already know the views of the court monitor and the plaintiffs about our current director. Does that mean we can't appoint the current director?

THE COURT: Your reading of this order does not comport with, I think, the commonsense reading of the order.

MR. NICKELS: Your Honor, there's only so much consultation you can have. ... Does the fact that the plaintiffs don't like Dr. Roque Gerald mean that we can't select him?

THE COURT: They are not saying that.

MR. NICKELS: They know his work --

THE COURT: The order requires, as I read it, consultation. And that, it seems to me, does not mean after the fact. Additionally, the order requires an acceptable (to the court monitor) proposed annual strategic plan that was not done. ... If you want to not follow the court order you need to file some type of motion to get relief from the Court....

For the judge, who has overseen the case since it was filed, it's a part of a pattern. "The contumacious posture of the District officials has become a troubling theme here ... Intransigence may be a nominal improvement from indifference, but it is still unacceptable in this context."

Does the judge live in the city? This is the kinda of leadership that actual holds this administration accountable. One thing this administration forgets is that this is not an oligarchy. That the executive level doesn’t run the show and that both the judicial and legislative braches are in place as checks and balances. Bravo Judge Thomas F. Hogan!!!

Ironically, this much Agency who is been influx for several years is slated for the most cuts in the Mayor’s FY11 budget.

It should come as no surprise, to anyone who has been paying attention, that Fenty would consult no one when choosing the CFSA Director, regardless of what he apparently agreed to in the court case. Fenty is nothing if not a control freak and micromanager. His overriding criterion for choosing agency heads and other high-level staff is that the selectee be willing to defer and kowtow to Fenty at all times. He even goes so far as to forbid his agency heads from speaking to the public, press, or Council!

What is surprising is that Fenty would have agreed to the "consultation" provision in the first place. The only logical conclusion is that Fenty and Nickles realized that Judge Hogan would accept nothing less at that juncture in the lawsuit... and so he pretended to agree, intending all along to do just as he pleased.

It will be interesting to see where this goes from here. Will Fenty and Nickles appeal the judge's ruling, on the ground that the choice of agency Directors is entirely within the power of the Executive? What effect will the earlier (ostensible) agreement have on this claim? Will this set up a serious separation-of-powers case for the appellate courts?

Of course, the issue could be rendered moot if the voters were to send Fenty packing in the upcoming election... arguably the best resolution for all.

I heard on NPR this morning that Attorney General Nickles said he will appeal Judge Hogan's ruling. I sincerely hope the ruling is affirmed. AG Nickles and Mayor Fenty need to learn to follow proper procedure.